Citation Nr: 18102450
Decision Date: 05/15/18 Archive Date: 05/15/18
DOCKET NO. 14-41 239
DATE: May 15, 2018
ORDER
New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for refractive error is denied.
New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for diabetes mellitus, type II (DMII), is denied.
FINDINGS OF FACT
1. A May 1984 rating decision denied service connection for a refractive error; the Veteran did not appeal this decision in a timely manner and no new and material evidence was submitted within one year of this decision. Therefore, the decision became final.
2. Evidence received since the May 1984 rating decision is cumulative and redundant of the evidence previously of record, such that it does not relate to an unestablished fact necessary to substantiate the refractive error claim, or raise a reasonable possibility of substantiating the claim.
3. A January 2010 decision by the Board denied service connection for DMII.
4. Evidence received since the January 2010 Board decision is cumulative and redundant of the evidence previously of record, such that it does not relate to an unestablished fact necessary to substantiate the DMII claim, or raise a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The May 1984 rating decision and January 2010 Board decision are final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103, 20.1100 (2017).
2. New and material evidence has not been received to reopen the claim of entitlement to service connection for refractive error. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
3. New and material evidence has not been received to reopen the claim of entitlement to service connection for DMII. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from July 1979 to July 1982.
New and Material Evidence to Reopen Previously Denied Claims
The Veteran is currently seeking to reopen his claims for entitlement to service connection for refractive error and DMII. Historically, the claim for refractive error was denied in a May 1984 decision. This rating decision was not appealed and he did not submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the May 1984 rating decision became final.
The claim for DMII was denied in a December 2004 rating decision which was subsequently denied by the Board in a January 2010 decision and became final upon dispatch.
The threshold question is whether new and material evidence has been received since the May 1984 decision to reopen the claim for refractive error, and since the January 2010 Board decision to reopen the claim for DMII. In this regard, “new evidence” means existing evidence not previously submitted to VA. “Material evidence” means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a)
New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether a veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).
The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record.
In this case, significant evidence has been added to the claims file since the May 1984 and January 2010 decisions, including assorted service treatment records (STRs), lay statements by the Veteran, medical research articles, and VA and private treatment records spanning the period on appeal. This evidence qualifies as new as it was not of record at the time of the final decisions. However, the newly submitted evidence is not material as it does not raise a reasonable possibility of substantiating the claims.
Initially, with regard to the appeal for refractive error, the Veteran has largely submitted further VA and private treatment records. Specifically, he has submitted treatment records asserting that his eyesight has deteriorated further and that he has a diagnosis for diabetic retinopathy with symptoms which began in service. However, the presence of a current disorder was not in question as the May 1984 rating decision denied service connection due to a lack of nexus between the current disability and the Veteran’s active service.
Insomuch as the Veteran is asserting that his newly-diagnosed diabetic retinopathy entitles him to service connection on a secondary basis, importantly, the Veteran is not currently service-connected for diabetes. Accordingly, while new evidence has been submitted in support of the claim, it is not material in that it does not raise a reasonable possibility of substantiating the appeal by establishing a nexus to the Veteran’s active service.
With regard to the Veteran’s claim for service connection for DMII, he submitted a medical article in March 2017 which makes broad characterizations of early symptomatology indicating an impending onset of DMII. Specifically, the article suggested that DMII often developed slowly, over a period of years with symptoms developing gradually, and that patients developing DMII can show early signs manifesting as fatigue, polyuria, psoriasis, blurred vision, itching of the skin, particularly the genitals, and slowly healing cuts and wounds.
The Veteran has asserted that his STRs indicate that he was treated for itching of the genitals, slowly healing cuts, and psoriasis in service, and as such, his DMII symptoms had their onset in service. Despite his contentions to the contrary, the complaints in the STRs were attributed to other disorders. Specifically, while he received treatment for genital issues in service, those symptoms were related to epididymitis or testicular strain as evidenced by April and May 1982 treatment records.
Next, STRs did indicate treatment for open lesions on the foot, but a September 1981 record indicates that it was due to athlete’s foot, and there is no indication that the lesions took a longer time than normal to heal. Additionally, while there was evidence of discharge and stinging upon urination in August 1980, the symptoms were attributed to a sexually transmitted infection. There were no further references to fatigue, or any other attributable symptomatology as provided for by the medical article. Thus, while new records have been submitted, they do not raise a reasonable possibility of substantiating the claims and the applications to reopen are denied.
Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).
LINDA HOWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel